HAPPY NEW YEAR 2011!

Here are some good lawyer resolutions from The Texas Lawyer:

Texas Counsel Share Their 2011 New Year's Resolutions

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Page 3 of the Statement of Appeal submitted on February 10, 2010.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Page 2 of the Statement of Appeal submitted on February 10, 2010.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Page 1 of the Statement of Appeal submitted on February 10, 2010.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

I then asked the Claimant to give me a detailed summary, in chronological order, of the history of the Claimant's mental condition and also a detailed summary, in chronological order, of the history of the misconduct claim against Claimant. With respect to the misconduct claim, I was referred to the attorney representing the Claimant in the other tribunal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

I made a decision not to request a transcript of the initial hearing for the following reasons:

1. To expedite the appeal.

2. The issue of mental capacity was not brought up at the hearing.

3. The issue of misconduct was being resolved in another tribunal and a final disposition was not expected until the summer.

4. If an appeal was granted and a new hearing ordered, I would be able to review the tape recording of the initial hearing in advance and could address then whatever issues might be raised in the first hearing that was not already addressed in the initial decision.

HAPPY HOLIDAYS

The legal "'Twas the Night Before Christmas" Excerpted from the NEA Journal, December 1960:

Whereas, on an occasion immediately
preceding the Nativity festival,
throughout a certain dwelling unit,
quiet descended, in which could be heard
no disturbance, not even the sound
emitted by a diminutive rodent related
to, and in form resembling, a rat; and

Whereas, the offspring of the
occupants had affixed their tubular,
closely knit coverings for the nether
limbs to the flue of the fireplace in
expectation that a personage known as
St.Nicholas would arrive; and

Whereas, said offspring had become
somnolent, and were entertaining re:
saccharine-flavored fruit; and

Whereas, the adult male of the
family, et ux, attired in proper
headgear, had also become quiescent in
anticipation of nocturnal inertia; and

Whereas, a distraction on the snowy
acreage outside aroused the owner to
investigate; and

Whereas, he perceived in a most
unbelieving manner a vehicle propelled
by eight domesticated quadrapeds of a
species found in artic regions; and

Whereas, a most odd rotund gentleman
was entreating the aforesaid animals by
their appellations, as follows:

"Your immediate co-operation is
requested. Dasher, Dancer, Prancer, and
Vixen; and collective action by you will
be much appreciated, Comet, Cupid,
Donder, and Blitzen"; and

Whereas, subsequent to the above,
there occurred a swift descent to the
hearth by the aforementioned gentleman,
where he proceeded to deposit gratuities
in the aforementioned tubular coverings.

Now, therefore, be ye advised:
that upon completion of these acts,
and upon his return to his original
point of departure, he proclaimed
a felicitation of the type prevalent
and suitable to these occasions, ie:

Merry Christmas to All and to All a Good Night!

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Here is Page 2 of the Notice of Receipt of Appeal. The reverse side, has noted in earlier blogs, sets forth the rules involved in perfecting the appeal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

On February 9, the Claimant faxed me a Notice of Receipt of Appeal that was received. Note that although I filed the Notice of Appeal on February 5, I was not listed as an attorney of record. Here is Page 1 of the Notice of Receipt of Appeal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Here is the Notice of Appeal filed by fax on February 5, 2010. I realize it is hard to read but it is the only way I can copy it and redact certain personal information. Basically, based upon my conversations with the Claimant's friend, I asked the Appeal Board to have a rehearing on the issue of the Claimant's mental capacity as an excuse for failure to file a timely request as the Claimant was being treated for mental illness, was homeless, on social services and had a meritorious defense to the claim of misconduct. Certain documentary evidence was also attached and case law was referred to.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

I consulted with the Claimant by phone. The Claimant was homeless, living out of a car, on social services, and having mental issues. The Claimant was incoherent and suggested that I speak to a friend of the Claimant to get the facts.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

The 20 day requirement for filing an appeal is as strictly followed as the 30 day requirement for requesting a hearing. So after reviewing the decision, I had to contact the Claimant immediately and ascertain the facts in order to prepare an appeal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Page 3 of the decision.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Page 2 of the decision - all reverse sides of the pages of the decisions set forth the rights to appeal to the Appeal Board and should always be read.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Page 1 of the decision.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Again, this was a pro bono case and it deals with the issue of a timely request for hearing as well as misconduct. It started at the end of January 2010. I received a phone call from someone at a government agency. They advised me that a homeless person was denied unemployment benefits, was quite upset, received an adverse decision from the DOL and the ALJ and could I help. Immediately, I asked them to fax over the decision.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

I was sucessful in getting one ruling in favor of a Claimant who did not file a timely request for a hearing. I will discuss the case in this and future blogs. This case was handled on a pro bono basis.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Another case from the Appeal Board on the issue of the timeliness of a Claimant's Request For Hearing:

"Claimant's attempt to request a hearing by telephone within thirty days of the mailing of the initial determination does not constitute a timely hearing request if the claimant is advised of the necessity to make such request in person or by mail and claimant has sufficient time to comply, but does not act promptly to make such request within the statutory period. (A.B. 409,1851; A-750-2050)"

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Another case from the Appeal Board on the issue of the timeliness of a Claimant's Request For Hearing:

"Claimant's failure to request a hearing within 30 days of the initial determination is not excused by claimant's incarceration, since claimant was not prevented by physical condition or mental incapacity from filing a hearing request. (A.B. 455,1691; A-750-2080)"

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Another case from the Appeal Board on the issue of the timeliness of a Claimant's Request For Hearing:

"In the absence of proof to the contrary, a determination is deemed mailed on the date recited on the initial determination and deemed received by the party to whom it is addressed within five business days. A hearing request is timely if such request is postmarked within 30 days of the appealing party’s receipt of the determination, or if there is other proof of filing of same with the commissioner within thirty days of receipt.(A.B. 545591; A-750-2130)"

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Another case from the Appeal Board on the issue of the timeliness of a Claimant's Request For Hearing:

"A claimant who did not request a hearing from a written determination of unavailability within the statutory appeal period but continued to certify to unemployment thereafter, may be heard on the question of availability for the period 30 days prior to the date on which request for a hearing is filed. (A.B. 21,562-49; A-750-938)"

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Now for some cases from the Appeal Board on the issue of the timeliness of a Claimant's Request For Hearing:

"Where the statutory appeal period ends on a Saturday, Sunday or holiday, such period is extended until the next business day. (A.B. 169,597A; See General Construction Law Sub. Sec. 25-a)".

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Now on this issue, let us examine the Appeal Board rules - again, right now we are limiting this discussion to the Claimant's request for a hearing:

"Section 461.1 Request for hearing under subdivision 1 of section 620 (claimant case).

(a) A claimant who is dissatisfied with an initial determination, or any other party affected by such determination, may request a hearing before an administrative law judge, pursuant to subdivision 1 of section 620 of the law, within 30 days after the mailing or personal delivery of such initial determination. A request for a hearing shall be deemed to be timely filed if such request is postmarked within 30 days of the appealing party's receipt of such determination, or if there is other proof of filing of same with the commissioner, such as a fax acknowledgment, a certificate of mailing, a stamped receipt by an agent of the commissioner, or an affidavit of personal service on the commissioner or her agent by a disinterested party. Absent proof to the contrary, an initial determination of the commissioner shall be deemed to have been mailed on the date recited on the initial determination and received by a party to whom it is addressed no later than five business days after the date on which it is mailed. The request for such hearing shall be filed at the local office. The request should be in writing stating the reasons therefor.

(b) If an affected party, other than a claimant, requests a hearing on an initial determination which has held the claimant eligible to receive benefits, such party must submit a written statement of the factual basis or specific events which such party contends are the grounds for denying benefits to the claimant. This statement of the factual incidents which are in issue should be of sufficient particularity as to inform the claimant of the facts to which the claimant must be prepared to respond at a hearing. Prior to the hearing, a copy of this written statement must be sent to the claimant."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

This is one of the strictest decisions I know of regarding the 30 day time period:

"IN RE BRIGGS, 52 A.D.3d 1081, 861 N.Y.S.2d 159 [3d Dept 2008]

Appeal from a decision of the Unemployment Insurance Appeal
Board, filed March 19, 2007, which ruled that claimant's
request for a hearing was untimely.

Rudolph J. LePore, Rochester, for appellant.

Andrew M. Cuomo, Attorney General, New York City (Bessie Bazile
of counsel), for respondent.

Before: Mercure, J.P., Spain, Rose, Kane and Kavanagh, JJ.

By notice of determination mailed December 5, 2006,
claimant was disqualified from receiving unemployment insurance
benefits upon the ground that her employment was terminated due
to misconduct. On January 5, 2007, claimant requested a
hearing. An Administrative Law Judge ruled that claimant's
request for the hearing was untimely and the Unemployment
Insurance Appeal Board affirmed. This appeal by claimant
ensued.

We affirm. "Pursuant to Labor Law § 620 (1) (a), a claimant
must request a hearing within 30 days of the date of the
mailing of the initial determination" (Matter of Dada
[Commissioner of Labor], 41 AD3d 1079, 1080 [2007];
see Matter of Jarrett [Commissioner of Labor],
13 AD3d 965 [2004]; Matter of Diaz [Commissioner of Labor],
6 AD3d 1024 [2004]). Here, the notice of determination was mailed
to claimant on December 5, 2006, and claimant admitted
receiving the notice shortly thereafter. Although claimant
argues that her request for a hearing was late by only one day,
this Court has held that a request for a hearing made on the
31st day after the mailing of the notice of determination is
untimely (see Matter of Ahmed [Commissioner of Labor],
294 AD2d 747 [2002]). Inasmuch as claimant failed to
demonstrate that she suffered from a mental or physical
incapacity that precluded her from requesting a hearing within
the 30-day period, we find no reason to disturb the Board's
decision (see Matter of Dada [Commissioner of Labor],
41 AD3d at 1080; Matter of Jarrett [Commissioner of
Labor], 13 AD3d at 965; Matter of Diaz [Commissioner
of Labor], 6 AD3d at 1024).

Ordered that the decision is affirmed, without costs."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Yesterday, a climant called with another reason for not sending in a request for a hearing within the 30 day period, but as we can see, the court is strict on this issue. Here's another case:

"IN RE WINSTON, 52 A.D.3d 1137, 862 N.Y.S.2d 127 [3d Dept 2008]

Appeal from a decision of the Unemployment Insurance Appeal
Board, filed December 19, 2006, which, among other things,
ruled that claimant was ineligible to receive unemployment
insurance benefits because he was not totally unemployed.

Winston R. Martinez, Lake Wylie, South Carolina, appellant
pro se.

Andrew M. Cuomo, Attorney General, New York City
(Marjorie S. Leff of counsel), for respondent.

Before: Mercure, J.P., Spain, Rose, Malone Jr. and Stein,
JJ.

Claimant filed original claims for benefits effective
August 29, 2004 and September 26, 2005. As to the August 2004
claim, substantial evidence supports the Unemployment Insurance
Appeal Board's finding that claimant's request for a hearing
was untimely. Although the underlying notice of determination
was mailed to claimant on April 13, 2006, he did not request a
hearing until more than three months later — well beyond
the 30-day limit imposed by Labor Law § 620 (1) (a)
(see Matter of Jarrett [Commissioner of Labor],
13 AD3d 965 [2004]). Claimant's proffered excuse for the delay
— that he "had a lot going on" at that time — falls
far short of demonstrating that he suffered from a mental or
physical incapacity that precluded him from requesting a
hearing within the 30-day period (see id.).

......."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

And another leading case on the issue:

"IN RE BAIRD, 54 A.D.3d 466, 862 N.Y.S.2d 415 [3d Dept 2008]

Appeal from a decision of the Unemployment Insurance
Appeal Board, filed August 28, 2007, which ruled that
claimant's request for a hearing was untimely.

Laurie G. Baird, Albany, appellant pro se.

Andrew M. Cuomo, Attorney General, New York City (Bessie Bazile
of counsel), for respondent.

Before: Mercure, J.P., Spain, Rose, Malone Jr. and Stein,
JJ.

After quitting her part-time job, claimant was terminated
from her full-time job. She applied for unemployment insurance
Page 467
benefits and, on October 17, 2006, the Department of Labor
mailed an initial determination denying her claim. The reverse
side of the initial determination advised claimant that a
request for a hearing had to be made within 30 days of the date
it was mailed. Claimant, however, did not request a hearing
until April 6, 2007. The Commissioner of Labor objected to the
timeliness of the hearing, which was ultimately sustained by
the Unemployment Insurance Appeal Board. Claimant appeals.

We affirm. Pursuant to Labor Law § 620 (1) (a), a claimant
has 30 days within which to request a hearing after the date of
mailing of the initial determination (see Matter of Ricketts
[Commissioner of Labor], 47 AD3d 1177 [2008]). In the case
at hand, claimant made her request for a hearing well outside
the 30-day time period and did not provide a reasonable excuse
for her delay (see Matter of McCarthy [Commissioner of
Labor], 39 AD3d 993, 993 [2007]; Matter of Palumbos
[Commissioner of Labor], 32 AD3d 1060 [2006]). Therefore,
we find no reason to disturb the Board's decision.

Ordered that the decision is affirmed, without costs."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Another example from the Third Department:

"IN RE ALMONTE, 65 A.D.3d 729, 882 N.Y.S.2d 924 [3d Dept 2009]

Appeal from a decision of the Unemployment Insurance Appeal
Board, filed October 22, 2008, which ruled that claimant's
request for a hearing was untimely.

Maria M. Almonte, Houston, Texas, appellant pro se.

Andrew M. Cuomo, Attorney General, New York City,
(Marjorie S. Leff of counsel), for respondent.

Before: Cardona, P.J., Peters, Rose, Kavanagh and McCarthy, JJ.,
concur.

Claimant was discharged from her position as a housekeeper in a
hotel on February 4, 2008 and applied for unemployment insurance
benefits. The Department of Labor mailed an initial
determination denying her claim on March 3, 2008. Although
the reverse side of the initial determination advised claimant
that a request for a hearing had to be made within 30 days of
the date that determination was mailed, claimant did not request
a hearing until June 5, 2008. The Commissioner of Labor's
objection to the timeliness of claimant's hearing request was
sustained by the Unemployment Insurance Appeal Board, prompting
this appeal.

We affirm. A request for a hearing must be made within 30 days
after the mailing of the initial determination (see
Labor Law § 620 [1] [a]; Matter of Baird [Commissioner
of Labor], 54 AD3d 466, 467 [2008]). Claimant's assertion
that she was relying on her legal representation to timely
request a hearing does not excuse her failure to do so,
particularly given her alleged status as a paralegal who,
despite an awareness of the applicable 30-day time period for
requesting a hearing, admittedly scheduled an initial
appointment for legal assistance on April 4, 2008, more than 30
days after the initial determination had been mailed (see
Matter of Burey [Commissioner of Labor], 8 AD3d 871, 872
[2004]; see generally Matter of Wilner [Commissioner of
Labor], 27 AD3d 860, 861 [2006]; Matter of Bryant
[Commissioner of Labor], 24 AD3d 942, 943 [2005]).
Accordingly, we find no basis on which to disturb the Board's
decision.

Ordered that the decision is affirmed, without costs."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Here is another case illustrating the strictness of the 30 day requirement:

"IN RE LEWIS, 69 A.D.3d 1088, 892 N.Y.S.2d 664 [3d Dept 2010]

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed December 1, 2008, which ruled that claimant's request for a hearing
was untimely.

Martin Lewis, New York City, appellant pro se.

Andrew M. Cuomo, Attorney General, New York City (Bessie Bazile
of counsel), for respondent.

Before: Mercure, J.P., Spain, Malone Jr., Stein and Garry, JJ.,
concur.

By initial determination mailed on June 18, 2008, the Department of
Labor found that claimant was ineligible to receive unemployment
insurance benefits because he was not totally unemployed. In addition,
the Department found that he had been overpaid $171 and that he had made
false statements in order to obtain benefits and, therefore, reduced his
right to receive further benefits by 16 days. Claimant did not request a
hearing until August 9, 2008. The Commissioner of Labor objected to the
timeliness of the request and, following various proceedings, the
Unemployment Insurance Appeal Board ruled that claimant's request was
untimely, prompting this appeal.

We affirm. A claimant who is dissatisfied with an initial determination
must request a hearing within 30 days of the date that it is mailed,
unless physical or mental incapacity prevents him or her from doing so
(see Labor Law § 620 [1] [a]; Matter of Briggs [Commissioner of Labor],
52 AD3d 1081, 1082 [2008]; Matter of Dada [Commissioner of Labor],
41 AD3d 1079, 1079-1080 [2007]). Here, while claimant admitted that he
received the initial determination within a week of its rendering on June
18, 2008, he admittedly failed to request a hearing until August 9, 2008
and proffered no valid excuse for doing so. As such, we find no basis for
disturbing the Board's decision (see Matter of Briggs [Commissioner of
Labor], 52 AD3d at 1082; Matter of Palumbos [Commissioner of Labor],
32 AD3d 1060 [2006]).

Ordered that the decision is affirmed, without costs."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Here is another case illustrating the strictness of the 30 day requirement:

"IN RE WRIGHT, 71 A.D.3d 1324, 895 N.Y.S.2d 886 [3d Dept 2010]

Appeal from a decision of the Unemployment Insurance Appeal
Board, filed June 18, 2009, which ruled that claimant's request
for a hearing was untimely.

Dwayne Wright, Newark, New Jersey, appellant pro se.

Andrew M. Cuomo, Attorney General, New York City (Bessie Bazile
of counsel), for respondent.

Before: Cardona, P.J., Peters, Rose, Kavanagh and McCarthy,
JJ., concur.

After he was terminated from his position as an assistant
manager with a shipping and receiving company, claimant applied
for unemployment insurance benefits. The Department of Labor
mailed an initial determination on October 3, 2008 denying his
claim. Claimant waited until December 5, 2008 to request a
hearing. At the hearing, the Commissioner of Labor objected to
its timeliness. The Unemployment Insurance Appeal Board
sustained the timeliness objection and upheld the initial
determination. Claimant appeals.

We affirm. It is undisputed that claimant failed to request a
hearing within 30 days of the date that the initial
determination was mailed as required by Labor Law § 620 (1)
(a) (see Matter of Lewis [Commissioner of Labor],
69 AD3d 1088 [2010]; Matter of Baird [Commissioner of
Labor], 54 AD3d 466, 467 [2008]; Matter of Briggs
[Commissioner of Labor], 52 AD3d 1081, 1082 [2008]). The
proffered reason for his failure to make the request sooner was
that he had difficulty focusing due to fact that he was moving
from place to place. Inasmuch as this did not constitute a
reasonable excuse for the delay (see Matter of Baird
[Commissioner of Labor], 54 AD3d at 467) and claimant has
not demonstrated that he suffered from a mental or physical
disability that precluded him from requesting a hearing within
the 30-day time period (see Matter of Martinez
[Commissioner of Labor], 52 AD3d 1137, 1137 [2008];
Matter of Briggs [Commissioner of Labor],
52 AD3d at 1082), we find no reason to disturb the Board's decision.

Ordered that the decision is affirmed, without costs."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Here is a recent case where the Cliamant was just a few weeks later in the request for hearing:

"IN MATTER OF DAVIS v. COMM. OF LABOR, 907 N.Y.S.2d 434 [3d Dept 9-23-2010]

Decided and Entered: September 23, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed February 26, 2010, which ruled that claimant's request for a
hearing was untimely.

Nathaniel K. Davis, East Patchogue, appellant pro se.

Andrew M. Cuomo, Attorney General, New York City (Steven Koton of
counsel), for respondent.

Before: Cardona, P.J., Peters, Rose, Stein and Garry, JJ.

MEMORANDUM AND ORDER

Claimant, a certified nurse's aide for an assisted living facility, was
terminated from employment for failing to disclose his criminal history
on his job application. Thereafter, he applied for unemployment insurance
benefits and the Department of Labor, finding that claimant lost his
employment due to misconduct, denied his claim by initial determination
dated August 5, 2009. In response, claimant did not send a letter
requesting a hearing until September 23, 2009. Following a hearing, the
Unemployment Insurance Appeal Board sustained the Commissioner of Labor's
timeliness objection and upheld the initial determination. Claimant now
appeals.

We affirm. Pursuant to Labor Law § 620 (1) (a), a claimant who is
dissatisfied with an initial determination must request a hearing within
30 days of the date that it was mailed, unless prevented from doing so by
physical or mental incapacity (see Matter of Wright [Commissioner of
Labor], 71 AD3d 1324 [2010]; Matter of Lewis [Commissioner of Labor],
69 AD3d 1088 [2010]). Here, inasmuch as claimant admittedly mailed his
request for a hearing outside the 30-day time period and failed to
proffer an acceptable excuse for the delay, we find no basis for
disturbing the Board's decision (see Matter of Wright [Commissioner of
Labor], 71 AD3d at 1324; Matter of Baird [Commissioner of Labor],
54 AD3d 466, 467 [2008]).

Cardona, P.J., Peters, Rose, Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Here is another case of interest:

"IN MATTER OF ADJEKUM v. COMMR. OF LABOR, 907 N.Y.S.2d 724 [3d Dept 9-30-2010]

Decided and Entered: September 30, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed April 7, 2009, which ruled that claimant's request for a hearing
was untimely.

Robert Adjekum, Perth Amboy, New Jersey, appellant pro se.

Andrew M. Cuomo, Attorney General, New York City (Bessie Bazile of
counsel), for respondent.

Before: Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ.

MEMORANDUM AND ORDER

The Department of Labor issued a notice of determination dated October
9, 2008 disqualifying claimant from receiving unemployment insurance
benefits on the ground that he lost his employment due to misconduct.
Claimant responded by letter dated November 23, 2008 protesting the
notice of determination. Following a hearing, an Administrative Law Judge
sustained the Commissioner of Labor's timeliness objection, and that
decision was upheld by the Unemployment Insurance Appeal Board. Claimant
appeals.

We affirm. "Labor Law § 620 (1) (a) provides that a claimant aggrieved
by a notice of determination has 30 days from the date of the mailing of
such notice to request a hearing, unless the claimant suffers from a
physical or mental condition preventing a timely request, in which case
the period may be extended" (Matter of Walker [Commissioner of Labor],
23 AD3d 752, 753 [2005] [citation omitted]; see Matter of Pelli
[Commissioner of Labor], 35 AD3d 930 [2006]). Here, it is undisputed that
claimant did not request a hearing within the requisite 30-day period
despite the instructions on the back of the notice of determination.
While he offered a variety of excuses for his omission, including that he
was out of the country, suffered from high blood pressure and was
experiencing financial difficulties, claimant failed to submit compelling
proof demonstrating that he suffered from a physical or mental condition
that prevented him from complying with the statute. Accordingly, the
Board properly concluded that the hearing request was untimely, and the
merits of his disqualification are not properly before this Court
(see Matter of McCarthy [Commissioner of Labor], 39 AD3d 993, 993-994
[2007]).

Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Another recent case which illustrates the need for Claimant's to offer a valid excuse for a late request:

"IN MATTER OF GANISIN v. COMMR. OF LABOR, 908 N.Y.S.2d 759 [3d Dept 10-7-2010]

Decided and Entered: October 7, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed June 23, 2009, which ruled that claimant's request for a hearing
was untimely.

Pope & Schrader, L.L.P., Binghamton (Kurt Schrader of counsel),
for appellant.

Andrew M. Cuomo, Attorney General, New York City (Steven Koton of
counsel), for respondent.

Before: Mercure, J.P., Spain, Kavanagh, McCarthy and Egan Jr., JJ.

MEMORANDUM AND ORDER

The Department of Labor, by initial determinations mailed September
18, 2008, found that claimant was ineligible to receive unemployment
insurance benefits because he was not totally unemployed. Additionally,
claimant was charged with a recoverable overpayment of $810 and his right
to receive future benefits was reduced by 44 days for having made willful
false statements. Claimant mailed his request for a hearing on January
12, 2009. The Commissioner of Labor objected to the timeliness of the
hearing request and, ultimately, the Unemployment Insurance Appeal Board
ruled that claimant's request was untimely, prompting this appeal.

We affirm. Pursuant to Labor Law § 620 (1) (a), a dissatisfied claimant
has 30 days in which to request a hearing from the date of the mailing of
the initial determination, unless physical or mental incapacity prevents
him or her from doing so (see Matter of Lewis [Commissioner of Labor],
69 AD3d 1088 [2010]; Matter of Baird [Commissioner of Labor], 54 AD3d 466,
467 [2008]). Here, claimant received the initial determinations shortly
after they were mailed and did not proffer a valid excuse for why he
failed to request a hearing until nearly four months later. As such, we
see no reason to disturb the Board's determination (see Matter of Wright
[Commissioner of Labor], 71 AD3d 1324 [2010]; Matter of Lewis
[Commissioner of Labor], 69 AD3d at 1088).

Mercure, J.P., Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

The courts have generally been extremely strict with this 30 day requirement for Claimants. For example, this case just came down about 10 days ago:

"IN MATTER OF DESANI v. COMMR. OF LABOR, 509336 [3d Dept 11-18-2010]
2010 NY Slip Op 08415 Decided and Entered: November 18, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed June 16, 2009, which ruled that claimant's request for a
hearing was untimely.

Elissa Desani, New York City, appellant pro se.

Andrew M. Cuomo, Attorney General, New York City
(Marjorie S. Leff of counsel), for respondent.

Before: Peters, J.P., Spain, Stein, McCarthy and Garry, JJ.

MEMORANDUM AND ORDER

Claimant, a sales associate at a jewelry store, resigned her
position in June 2008 and thereafter applied for unemployment
insurance benefits. By initial determination mailed
on August 25, 2008, the Department of Labor found that claimant was
ineligible for benefits because she voluntarily left her employment
without good cause. The Department further charged claimant with a
recoverable overpayment of $460.75 and found that she had made false
statements to receive benefits and, therefore, reduced her right to
receive future benefits by eight days. Claimant, who was out of the
country from July 2008 until December 2008, did not request a
hearing until her return. The Commissioner of Labor objected to the
timeliness of her request and, following various proceedings, the
Unemployment Insurance Appeal Board ruled that claimant's request
was untimely. Claimant now appeals.

We affirm. Pursuant to Labor Law § 620 (1) (a), when dissatisfied
with an initial determination, a claimant must request a hearing
within 30 days unless physical or mental incapacity prevents him or
her from doing so (see Matter of Wright [Commissioner of
Labor], 71 AD3d 1324 [2010]; Matter of Lewis
[Commissioner of Labor], 69 AD3d 1088 [2010]). Here,
claimant admittedly waited nearly four months before requesting a
hearing and failed to proffer an acceptable excuse for the delay
(see Matter of Wright [Commissioner of Labor], 71 AD3d at 1324;
Matter of Briggs [Commissioner of Labor],
52 AD3d 1081, 1082 [2008]).

Peters, J.P., Spain, Stein, McCarthy and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

With respect to Claimant's request for a hearing, we must first look to the statute:

"Sec. 620. Referees` hearings. 1. Disputed claims for benefits. (a) A claimant who is dissatisfied with an initial determination of his claim for benefits or any other party, including any employer whose employer account percentage might be affected by such determination, may, within thirty days after the mailing or personal delivery of notice of such determination, request a hearing. The referee may extend the time fixed for requesting a hearing, upon evidence that the physical condition or mental incapacity of the claimant prevented the claimant from filing an appeal within thirty days of the initial determination. Any employer whose employer account percentage might be affected by such determination, irresepctive of whether or not such employer was a party to a hearing brought hereunder, shall have free access to all records of any hearing brought hereunder by any party relating to such determination.

Paragraph (a) as amended by L. 1959, Ch. 224, L. 1975, Ch. 82 effective October 1, 1975 and further amended by L. 1998, Ch. 589, effective April 1, 1999."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

This is an issue coming up in several cases - the difference between the law and rules regarding a Claimant's request for a hearing and an Employer's request for a hearing.

Let me first begin with the FAQ from the Appeal Board website:

"INFORMATION ABOUT UI HEARINGS:

How do I ask for a hearing if I disagree with a NOTICE OF DETERMINATION on unemployment benefits?

The NOTICE OF DETERMINATION tells you how to ask for a hearing. Fax or mail a request for a hearing to the address indicated on the NOTICE OF DETERMINATION. Your request must be postmarked or faxed within 30 days after the determination is mailed to you. A hearing will not automatically be set up if you don’t ask for one.

Who can ask for a hearing?

A claimant or employer who is affected by the determination can ask for a hearing. Under the law, charges for benefits are shared by all employers of the claimant in the base period. That is why employers who are not the last employer may also ask for a hearing. If a claimant receives a Notice of Hearing, he or she should attend to preserve any rights to benefits."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

As we approach Thanksgiving, I realize in this case that there is much to be thankful for:

1. The Claimant who trusted me to present the case.

2. The Appeals Board staff who helped me in scheduling the various hearings.

3. The ALJ who initially (and correctly) decided the case in the Claimant's favor.

4. The Employer's attorney and the Employer - because after the attorney actually reviewed the transcript, based upon counsel's advice, the Employer followed the attorney's advice and withdrew their appeal.

The Claimant was discharged in August 2008. It is now November 2010. The Claimant received, after much litigation, unemployment insurance benefits. Most of my fee has been paid by the Claimant. For all this and more, I am thankful.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The fee was quickly approved by the Appeal Board on September 22 and a copy was sent to the Claimant.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

A new request for fees was made - and due to the extra time put in regarding the application to reopen and then the withdrawal, there was an additional $150 in fees requested - for a total request of $1,650.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Page 2 of the decision accepting the withdrawal by the Employer.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Page 1 of the decision accepting the withdrawal by the Employer.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

A decision from the Appeal Board was mailed out on September 17, 2010 - almost 6 months after the attorney for the Employer withdrew the Employer's appeal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

However, even though the Employer had submitted a document on March 26, 2010 that it was withdrawing it's appeal, the appeal is still pending an official decision from the Appeal Board - a decision must be entered whether or not the Appeal Board accepts the withdrawal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

A letter was sent on March 26, 2010 by the Employer's counsel to the Appeal Board, the Claimant and myself withdrawing the appeal, confirming the telephone conversation that the Employer would not pursue the appeal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Approximately 2 hours in reviewing the transcript, updating research, beginning the preparation of a brief, etc. was performed by me when I received a phone call from the Employer's counsel on March 25, 2010 - the Employer's counsel, after reviewing the transcript, realized the Employer had no grounds for appeal, that the decision of the ALJ was correct and that the counsel was advising the Employer to withdraw the appeal. I immediately notified the Claimant.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

In anticipation of the Employer filing a statement or brief ion appeal, now was the time to review the transcript once again, research the law and prepare a proposed reply statement (based upon the arguments that were made in the notice of appeal and in the transcript of the hearing) because the time limits for reply, etc. are strict. From Appeals Board Rule 463.1:

"(4) Upon written request, arrangements may be made to inspect the minutes of the administrative law judge hearing or to borrow the minutes for the purpose of making a copy thereof at the party's expense. The request to make such arrangements must be made within seven days from the date of the notice of receipt of appeal. In such event, the time to submit written statements, documents or briefs shall be 20 days from the date when that party is sent notice that the transcript is available for inspection or copying.

(5) If another party submits statements, documents or briefs on this appeal, you will receive copies and will have 12 days to reply in writing. The 12 days to reply is measured from the date when the copies were mailed to you. A party may submit a reply at only one time. Subsequent replies will be returned to the party."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

After discussing the methods we would utilize in this second appeal, I waited for the Employer's Request To Inspect Transcript, which arrived shortly.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Realizing that the Employer was, for lack of a better term, tenacious, I contacted the Claimant to ascertain whether the Claimant had a new job, was still collecting UI benefits, status, etc. in order to ascertain the most cost effective way of dealing with this second appeal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

From the Appeals Board received on or about March 6, 2010.

IN HONOR OF VETERAN'S DAY

My father - WW II - the Pacific.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

This is the applicable rule regarding re-opening of Appeal Board decisions:

"Section 463.6 Reopening.

(a) On its own motion or on application duly made to it, the board, in its discretion, may reopen a decision.

(b) On its own motion or on application duly made to it, the board, pursuant to section 534 of the law, may modify or rescind its order, decision or determination. If an application for such reopening is not received by the board or postmarked within 30 days after such order, decision or determination, the application must contain an explanation for the delay. If good cause for the delay has not been established by the explanation, the board may, without further notice to the parties, deny the application by an order which shall be sent to all parties. If an application is not denied by an order of the board for this reason, notice of reopening or notice or receipt of the application to reopen shall be sent to all parties and their duly designated representatives. The notice shall advise the parties of their basic rights while the reopening is pending. The parties shall have the same rights as those set forth in sections 463.1 and 463.2 of this Part with regard to an appeal. The board may, in its discretion, schedule a hearing for argument or to receive further evidence. The board may adhere to, modify or rescind its prior decision or may deny the application to reopen.

(c) On its own motion or on application duly made to it, the board, pursuant to subdivision 3 of section 620 of the law, may modify or rescind an administrative law judge decision, where no appeal was duly taken. If an application for such a reopening is not received by the board or postmarked within 25 days after the administrative law judge decision, the application must contain an explanation for the delay. If good cause for the delay has not been established by the explanation, the board may hold a hearing, upon due notice to all parties, regarding the timeliness of the request for the board to reconsider the administrative law judge decision. The board may, without further notice to the parties, dismiss the appeal or deny the application by an order which shall be sent to all parties. If an application is not thus dismissed or denied, notice of reopening or notice of receipt of the application to reopen shall be sent to all parties and their duly designated representatives. The notice shall advise the parties of their basic rights while the reopening is pending. The parties shall have the same rights as
those set forth in sections 463.1 and 463.2 of this Part with regard to an appeal. The board may, in its discretion, schedule a hearing for argument or to receive further evidence. The board may affirm, modify or reverse the administrative law judge decision or may deny the application to reopen.

(d) Whenever the board reopens a decision pursuant to this section, it shall state the reasons therefor in its decision."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

I immediately responded with this letter in opposition. It is dated February 13, so as I check my time records, it appears that the employer counsel's letter of February 12 was received on February 13 and I sent this letter out that evening.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Then on or about February 14, 2010, I received a copy of this letter from the Employer's first counsel.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

At this point, let us recap:

1. Claimant was denied benefits from the DOL.

2. Claimant received pro bono representation by me for several days of hearings over several months.

3. Claimant received a decision from the ALJ overruling the DOL decision.

4. Employer appealed.

5. Claimant's representation by me continued on a fee basis.

6. Hearings were held on the timeliness of Employer's request for appeal for several days over several months.

7. Appeal Board eventually allowed the appeal.

8. Claimant copied the transcript.

9. But Employer does not pursue the appeal and submits no documents.

10. The Appeal Board upholds the decision of the ALJ.

11. I applied for a fee of $1,500 (although my normal rate would have been at around $3000).

Thus, at this stage, the Claimant has a potential legal fee of $1,500 for an appeal by Employer that Employer did not pursue. From the date of Claimant's termination of employment to this stage, a period of approximately 1 1/2 years has transpired. And the saga does not end here.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Here is the request for fee approval sent on February 12. A copy was sent to the Claimant.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

After I and the Claimant received the decision, I wrote to the Claimant:

"Hello:

You won. Congratulations.

I will send my application for counsel fees to the Appeals Board and a copy to you. Once they approve a fee, I will send you a copy of their approval.

Best of luck!"

Remember from an earlier blog, although I had agreed to do the ALJ hearing on a pro bono basis through a not for profit organization, I had advised the Claimant that any appeal would be on a fee basis as per the Appeal Board rules.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Page 3 of the decision dated February 9, 2010.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Page 2 of the decision dated February 9, 2010.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Page 1 of the decision dated February 9, 2010 and received on February 11, 2010.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

On some cases, I have waited for months, 6 or more, for a decision from the Appeal Board; however, on this case, a decision was received on February 11, 2010 about a month after statements were ostensibly due. The Claimant was successful and I so advised the Claimant.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Now according to the December 23 notice of the availability to copy and inspect, the time to submit a brief or statement would expire on January 12, 2010 (see 3rd paragraph of December 23 notice from earlier blog) and the postscript stated the Claimant could only submit one brief or statement. However, the appeal was made by the Employer and if I prepared a brief or statement, I would want it to be in response to the Employer's brief or statement. After consultation with the Appeal Board, I was advised that the Employer did not request the transcript and that no statement was going to be accepted as the matter was being heard by the Appeal Board based on the existing record and file.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

I received the transcript and reviewed it. It is important to note that at the ALJ hearings, the hearings are tape recorded. The tape recorder is usually at the end of the witness table. It is important, when a witness testifies, to speak directly into the tape recorder. In this case, the written transcript revealed that there were many instances where the transcriber was unable to hear the testimony and, as a result, the transcript had many instances of "inaudible".

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The Claimant was out of town but arranged for a friend and/or relative to copy the transcript. This involved going down to the ALJ office in Garden City, picking up the original of the transcript, going to a copy store, making a copy, returning the original to the ALJ office, and sending me by overnight or hand delivery the copy of the transcript. All this was done in one day.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Then on December 27, 2009, I received a notice from the Appeals Board dated December 23 that the transcript was ready to inspect and copy and I so advised the Claimant.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

I communicated with the Claimant through email and naturally the Claimant was concerned about the cost of copying around 300 pages (about $30). The Claimant decided to go ahead and request the copies and that the Claimant would copy them and deliver them to me. Unfortunately, the copy I have of my request does not "copy" well to post but in effect it was a fax stating that I was requesting to inspect and copy the minutes and that a copy of this request was also be sent to Albany and that a copy has been faxed and sent to the Employer's counsel.

THANK YOU NASSAU COUNTY BAR ASSOCIATION

Yesterday was a Volunteer Recognition Luncheon where I, among others, were recognized for volunteer work in mortgage foreclosure consultations and settlement conferences. There is a clinic today at 3 and I will be there.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Of course, even if an attorney's notes of the hearing are perfect, I believe an attorney should always choose to inspect the written transcript so that the statement of appeal can refer to specific statements and evidence on the written transcript. The issue is whether and how the attorney should arrange for inspecting and copying the minutes. Copying the minutes involves picking up the written transcript at the ALJ office, having it copied, and returning the original to the ALJ office.

The options are as follows:

1. Should Claimant just have the attorney inspect the written transcript? If the attorney cannot incur the cost of copying, inspection of the minutes will involve time being spent by the attorney inspecting and reviewing the transcript and making notes.

2. Should Claimant have the attorney incur the cost of copying the written transcript? If the attorney can incur the cost, the attorney should copy the minutes.
But since the attorney's fee is contingent on a successful case, as per the Appeals Board rules, no fees have been paid to the attorney so the attorney has to decide whether or not the attorney can advance the cost of copying the minutes.

3. Should Claimant arrange to pick up the written transcript, have them copied, and delivered to the attorney so that the attorney has a copy to refer to during the preparation of the statement of appeal? Again, this will involve the Claimant picking up the written transcript at the ALJ office, incur the costs of having it copied, returning the original to the ALJ office and then delivering a copy to the attorney.

The written transcripts, here in NY, are on 81/2x 14 inch paper. In this case, there were around 300 pages of written transcripts.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Now is the time to review the Appeal Board rules when considering a request for transcripts of the hearing:

From Section 463.1

"(f) Notice of receipt of appeal. The board shall send notice of receipt of appeal to the commissioner, the claimant, the employer and their duly designated representatives. Each notice of receipt of appeal to the board shall include the following statement and the parties shall be granted the following rights:

(1) All communications should cite the above appeal number.

(2) The appeal board usually decides appeals without a new hearing. It relies on evidence taken at the administrative law judge hearing and the written arguments of the parties on appeal. The board will not consider any evidence not introduced at the administrative law judge hearing unless all parties consent or it is made part of the record at a further hearing. In its discretion the board may hold an additional hearing.

(3) Each of the parties may submit, in writing, requests to inspect the minutes of the hearing, or statements, documents or briefs to be considered in connection with this appeal. Two copies of such written requests, statements, documents or briefs must be mailed, within seven days from the date of this notice, addressed to the Unemployment Insurance Appeal Board, P.O. Box 151126, Albany, NY 12212-5126. An attorney-at-law, or representative, must mail a copy of the statement, document or brief to each of the other parties, and their attorneys and representatives, and certify to the board that this has been done. Each party may submit such statement, document or brief only once. Subsequent statements, documents or briefs will be returned to the party.

(4) Upon written request, arrangements may be made to inspect the minutes of the administrative law judge hearing or to borrow the minutes for the purpose of making a copy thereof at the party's expense. The request to make such arrangements must be made within seven days from the date of the notice of receipt of appeal. In such event, the time to submit written statements, documents or briefs shall be 20 days from the date when that party is sent notice that the transcript is available for inspection or copying.

(5) If another party submits statements, documents or briefs on this appeal, you will receive copies and will have 12 days to reply in writing. The 12 days to reply is measured from the date when the copies were mailed to you. A party may submit a reply at only one time. Subsequent replies will be returned to the party.

(6) Any party may make a written request for an extension of the above time limits to submit a statement, document, brief or reply. The request must give the specific reasons why the time limit cannot be met. Extensions will only be granted if the request establishes good cause to excuse the delay. Unless an extension has been granted, any submission mailed after the times specified here shall be returned to the party.

(7) Parties may be represented by lawyers or other persons of their choice on appeal before the appeal board. For representing a claimant, a lawyer or agent registered by the appeal board may charge a fee. Before the claimant pays the representative any fee, the fee must be approved by the appeal board. No other person may charge a fee for representing a claimant. If you do not have enough money to hire a lawyer or registered agent, you may be able to get one free through your local Legal Aid Society or Legal Services Program.

(8) If you have any questions, contact the board at the above address."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

In determining whether or not to request a transcript, one should consider how an appeal to the Appeals Board works. rather than recite the Appeal Board rules, they are adequately described in the Appeals Board web site's FAQ section:

"What happens after an appeal?

You are sent a notice of receipt of appeal with instructions about the appeal including how to submit a statement and how to ask to see the transcript of the hearing. This is true if you appealed or if the other side appealed.

Can I testify again or add anything to the case?

Most of the time there are no more hearings and the Appeal Board will decide the case based on the record from the judge’s hearing, Whenever the Board decides that another hearing is necessary, an order or hearing notice will be sent to you. New information submitted by a party on appeal will be considered only if a hearing is ordered by the Appeal Board and that information is received as evidence.

Do I have to submit a statement on the appeal?

No. You don’t have to submit a statement but you should send one if you want the Appeal Board to know why you think the judge’s decision was wrong. Two copies of the statement must be sent to the Appeal Board. If the statement is submitted by an attorney, the attorney must serve copies of the statement on opposing parties and any opposing counsel and submit an affidavit of service to the Board with the statement."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The next issue was to consider whether the Claimant should exercise the right to inspect minutes. As per the appeal board rules: "Upon written request, arrangements may be made to inspect the minutes of the administrative law judge hearing or to borrow the minutes for the purpose of making a copy thereof at the party's expense. The request to make such arrangements must be made within seven days from the date of the notice of receipt of appeal. In such event, the time to submit written statements, documents or briefs shall be 20 days from the date when that party is sent notice that the transcript is available for inspection or copying."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

At around the same time as the mailing of the December 10, 2009 Notice, this other notice was also sent by the Appeals Board. The attachment is the April 28, 2009 Notice of Appeal from the Employer and the lateness explanation letter of July 6, 2009, previously posted, both of which were the subject of the telephone hearings.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

I received a copy of the decision the next day. Although names are blocked out, notice that on this telephone hearing, taking 3 days over several months, besides the ALJ, were this many parties present:

1. The Claimant.

2. Myself representing the Claimant.

3. The Employer, consisting of two owners.

4. The first counsel to the Employer.

5. The second counsel to the Employer.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

On December 14, 2009, I received an email from the Claimant that the Appeals Board decided to allow the Employer's appeal. I did not receive a copy of the decision so I asked the Claimant the next day to email or fax me a copy of what the Appeals Board sent to the Claimant.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The last telephone hearing on the issue of the whether the Employer filed a timely notice of appeal was held on November 23, 2009. Present by telephone was the ALJ taking evidence on behalf of the Board, the Claimant, myself, the Employer (only one of the managers), the Employer's first counsel, the secretary to the Employer's first counsel and the Employer's second counsel. Testimony and cross-examination was this time given by the Employer's first counsel, the secretary to the Employer's first counsel and the Claimant and then the ALJ heard our final arguments. The ALJ also asked me to fax over some cases I referred to in my argument. The ALJ ended the hearing with a statement that the Board within a week would decide whether to accept the Employer's appeal or dismiss the Employer's case.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Throughout the months of October and November there were various scheduling problems for the 3rd telephone hearing: various notices were sent, similar to the one in the previous post, until it was finally settled that the last hearing would be on November 23, 2009.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

At the September 21, 2009 hearing, it was agreed that the next scheduled hearing would be held on September 30, 2009 but I later received a phone call from the ALJ in Troy that the date was being adjourned. I also received a Notice of Adjourned Hearing.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Although I personally felt that the evidence did not establish that the Notice of Appeal was timely sent, during the telephone hearing on September 21, the Employer's counsel offered to send an Affidavit of Service. I reserved the right to cross-examine regarding the Affidavit of Service at a further telephone hearing. Two days later, an Affidavit of Service dated September 21 2009 was faxed to me stating that the Notice of Appeal was timely served in April 2009.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

At the next hearing by telephone on September 21, the Employers' counsel, now realizing he was a witness, brought in additional counsel to represent the Employers and a further examination on the issue of when the Notice To Appeal was mailed was held through examination and cross-examination. The position of the Employer was that it did send a timely Notice of Appeal but that for some reason the Appeals Board never received it.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

During the first hearing on the timeliness of the Employer's Request To Appeal, the Employers' Counsel testified and attempted to introduce documents which were not in my possession. It appeared to me that the Employers' Counsel was acting as witness and attorney - which raised issues under Rule 3.7 of the Rules of Professional Conduct. The hearing was short; it was agreed that the Employers' Counsel would fax me some documents, and the hearing was adjourned for 5 days.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The first hearing on the timeliness of the Employer's Request To Appeal was conducted by telephone conference with an ALJ in Troy on September 16, 2009. Present by telephone was the Claimant and myself, the Employers and their attorney who filed the Request To Appeal.

HAPPY COLUMBUS DAY!

UNEMPLOYMENT INSURANCE

The importance of the decision below is that the rules regarding disqualification by voluntary separation are now the same as the rules regarding disqualification for misconduct with respect to the charging of the Employer's account and the Employer's right to object when the Claimant has earned more than five times his benefit in subsequent employment. In layman's terms: Claimant is discharged by Employer A for misconduct or voluntary separates from Employer without compelling reason and is not qualified for benefits. Claimant does not file for benefits. Claimant now is employed by Employer B and earns 5 times the benefit rate but is discharged/laid off by Employer B for non-disqualifying reasons. Claimant now files for benefits. Even though Claimant's base period includes wages earned by Employer A, Employer A cannot object to the benefits claim of Claimant.

UNEMPLOYMENT INSURANCE

Let me take a break about the saga of Case No. 2 by posting this decision which was handed down recently from the Appeals Board, which may be subject to appeal to the Appellate Division 3rd Department, but in any event is of importance. This was not a case I worked on but just a decision I was made aware of.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

In September of 2009, I finally heard from the Appeals Board. On September 4, I received a Notice of Hearing in which they advised me that they were going to have a hearing on the timeliness of the Employer's appeal and that the hearing would be by telephone conference on September 16. I spoke with the Claimant regarding certain issues that would arise during the telephone hearing and prepared for the hearing. Unfortunately, I cannot find at this time a copy of the Notice of Hearing to post (so that one can see what it looks like) but I will post subsequent Notice of Hearings as there were several days of hearings on this issue.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The Claimant agreed to my representation on a fee basis(remember the Claimant was now receiving benefits as a result of the hearing and would continue to receive unless the decision was overruled)and I sent to the Appeals Board a letter objecting to the notice.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

I of course reviewed the papers and then advised the Claimant that my pro bono representation, through the pro bono group, only applied to the hearing. Any future representation would be covered by the rules of the Appeals Board governing fees:

"Sec. 538. Representation and witness fees and other expenses.

1. Fees and compensation of representatives.

(a) No fee shall be charged in any proceeding under this article by the commissioner, by the appeal board or by any court.

(b) In any proceeding under this article a party may be represented by an agent, but no fees for services rendered by such agent shall be allowable unless such agent is registered with the appeal board or is an attorney.

(c) Claims of representatives for services rendered to a claimant in connection with any claim arising under this article shall not be enforceable unless approved by the appeal board and shall in no event exceed the benefit allowed, except as provided in paragraph (d) of this subdivision. In approving any fee requested by a representative pursuant to this section, the appeal board shall consider the following factors: (i) the total benefit allowed; (ii) the time spent in providing representation; (iii) the legal and factual complexities involved; and (iv) such other factors as the appeal board may deem relevant.

(d) In addition to any fee which may be allowed by the appeal board for services rendered to the claimant, an attorney representing a claimant shall be entitled to a fee not to exceed the sum of five hundred dollars and necessary printing and other disbursements in each of the following cases: (1) On an appeal from a decision of the appeal board in favor of the claimant. (2) On a motion for leave to appeal to the court of appeals from a decision of the appellate division of the supreme court which relates to a decision of the appeal board in favor of the claimant. (3) On an appeal to the court of appeals from a decision of the appellate division of the supreme court which relates to a decision of the appeal board in favor of the claimant. When a claimant takes such appeal, the court shall allow a fee and disbursements only if it finds the appeal to have been meritorious.

(e) The court shall appoint an attorney to represent the claimant if he is unrepresented in each of the cases described in paragraph (d) hereof, except when the claimant takes an appeal to the court of appeals. Fees and disbursements provided in such paragraph (d) shall be fixed by the court in which the appeal is taken or the motion for leave to appeal is made. Such fees and disbursements shall be paid by the commissioner as part of the expenses incurred in the administration of this article.

(f) Any person, firm, or corporation who shall exact or receive any remuneration or gratuity for any services rendered to or on behalf of a claimant except as allowed by this section and in an amount approved by the board or a court shall be guilty of a misdemeanor. The appeal board shall order the restitution of it exceeds the amount authorized by this section."

I also advised the Claimant of links to the Appeals Board website in order to assist the Claimant if the Claimant decided to oppose the appeal on a pro se (without representation) basis.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The final page of the attachment to the notice from the Appeals Board.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The second page of the attachment to the notice from the Appeals Board.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The first page of the attachment to the notice from the Appeals Board.

TODAY...

....I'll be at the Levittown Chamber of Commerce annual Business to Community Expo offering exhibition opportunities to chamber members - in front of the Levittown Library.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Page 1 of the notice from the Appeals Board.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

Well all seemed well. The case was handled on a pro bono basis so no request for fees were made. It appeared during the hearings that the Claimant may have had certain rights violated and I advised the Claimant to speak to an attorney who specilaizes in that area. Then I received an email on July 18, 2009, almost 3 months after the decision:

"Dear Jon

Hope You Doing Well.

I Just Received A Letter From Unemployment Appeal Board That XXXX Appealed The Decision Of Granting Me Unemployment.

Please See Attached Files.

If Possible Please Let Me What Should I Do.

Thanks & Best Regards

XXXXXXXX"

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

This is page 5, the final page of the decision. Page 4 and 6, like page 2 in yesterday's blog, is the reverse side with instructions regarding appeal, which was also set forth in yesterday's blog....But although the Claimant was held to be entitled to receive benefits, the story of this case has another 18-20 months to go so to quote Winston Churchill: "Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

This is the next page of the decision - although it states page 3, page 2 is the reverse side with instructions regarding appeal, which is also set forth herein.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The next day a decision came out. The Claimant was entitled to benefits, the decision of the DOL was overruled. I contacted the Claimant. Here is the first of three pages of the decision. Note how the decision states the two issues - misconduct (the original determination) and voluntary separation (the expanded issue).

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The next day of hearings was on April 22, 2009. At first it seemed that the Employer was not appearing. The hearing proceeded with the Claimant's testimony but then the Employer (again with the co-owner/manager) arrived late and the hearing tape was replayed for them. Testimony continued, the facts were complicated, cross-examination, closing arguments, etc. but the hearing was concluded and a decision was reserved by the ALJ.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

This turned out to be a complicated factual matter. The first day of hearings (as it turned out there were several days) began the next day on March 13 2009. I met with the Claimant an hour before the hearing, reviewed the file, etc. The hearing began. The Employer did not have counsel but appeared with the co-owner/manager. The ALJ began and took testimony from the Employer. It appeared that the Employer was now arguing that the Claimant quit without good cause. The ALJ expanded the issue to include voluntary separation and I requested an adjournment to prepare. Thus, in effect, I was able to use the first day of hearing as a means of discovery as I now knew the full theory of the Employer's case. The downside to this is that the Claimant was still not receiving UI benefits; however, the Claimant did have a spouse who was employed and family to assist. Thus, I made a judgment call that it would be better to take the time to prepare the case properly insofar as I only had one day notice of the hearing.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

So to start this saga, I received a call from a pro bono organization in the early months of 2009 regarding this Claimant. The Claimant was denied benefits on the grounds of misconduct. The Claimant had a hearing scheduled at the Garden City - I was asked to represent the Claimant on a pro bono basis. I agreed. I spoke to the Claimant immediately as the hearing was scheduled for the next day, did my research and had the Claimant send me by fax certain documentation.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The first thing to consider in this case is the time frame: the Claimant's last day of employment was in August 2008. It wasn't until September 2010 that this matter was finally resolved. That is over two years. Again, litigation, even on the administrative level, can be a process and not necessarily a means for immediate relief.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - CASE NO. 2

The best way to start the story of this case is at the ending. Here is the Appeal Board decision.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

As it turns out, there will be ho hearing on September 22. The file did not come back in time from Albany when I tentatively scheduled the date after I received the decision so the scheduling did not occur. I must schedule a new date. These things happen - which is why your calender diary must be accurate and checked in advance. If you do not get a Notice of Hearing at least 3-4 days before the scheduled hearing date, something happened: a request for adjournment, judge is out sick, etc. I spoke to the Claimant yesterday and advised that we must schedule a new date.

LANDLORD/TENANT COURT

Today, I will be Pro Bono Landlord/Tenant Attorney of the Day at Nassau District Court, in conjunction with Nassau Suffolk Legal Services.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

After the decision, I contacted the scheduling office to schedule a hearing for September 22. Usually, the notices are sent out a week before the hearing date. To date, I have not received the notice and tomorrow I will call to confirm with the ALJ office as to whether the September 22 date is still on or has been adjourned. Perhaps the problem may be that the Claimant advised me that the Employer is now out of business. Perhaps there was an error in scheduling. But these things do happen.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL

Then on August 5, 2010, the Decision of the Board came in.